Mick Clifford: An Bord Pleanála should go back to the future in appointment of new chair

Appointing a High Court judge, as was mandatory when An Bord Pleanála was established, would give the new board a head start, restore a sense of authority and move on from the current crisis

In light of a housing crisis that is dominating public and political life, and widening generational gaps, this surely is the opportunity for some High Court judge to make a real difference. Picture: Gareth Chaney/Collins Dublin

Drastic times require drastic measures. 

Right now, the minister for housing needs to have a properly functioning planning board if any inroads are to be made into the housing crisis. 

Last week, the chair of An Bord Pleanála, Dave Walsh, resigned as there appeared to be no end in sight to the controversies of recent months. 

His departure leaves the board with four operational members — a fifth is on extended leave. 

A year ago, there were nine members and there is provision for a 10th, if required, which surely would be the case in the current milieu.

In ordinary times, the board could simultaneously sit in three divisions, of three members each, and get through a good share of work. 

Currently, that is down from three to one decision-making body, and without the leadership of a chair, or even a deputy chair, the latter office left vacant since Paul Hyde resigned in July. 

The office of deputy chair has been left vacant since Paul Hyde resigned in July.

With such a state of affairs pertaining, one would have thought it was vital the vacancies get filled as soon as possible.

That is not happening because one of the issues to arise over the last six months was the process of appointments. 

So Housing Minister Darragh O’Brien is not going to rush things, although a new method of appointments was recommended in a review six years ago but studiously ignored until now. 

In the meantime, he is talking of appointing public servants to fill the existing gaps until the new regime can be bedded down. 

Appointing public servants directly into an independent body like An Bord Pleanála is far from ideal. But drastic times require drastic measures.

If that is how it is to be in the short term then there is one measure Mr O’Brien can take which might plug the drain of public confidence. 

The next chairperson will have a major task on his or her hands in getting the show back on the road. 

Above all, the chair will have to be trusted to restore the values of independence and impartiality that have been so damaged by what has emerged. 

While there are undoubtedly many people from different walks of life who could fill such a role, why not get a head start by appointing somebody set apart from the Government and charged with processing the law without fear or favour. 

Why not go back to the future and recruit a High Court judge?

When An Bord Pleanála was established in 1977 it was mandatory that the chair be a High Court judge. 

The bill for a new board was introduced four years earlier and during its passage through the Oireachtas, concerns were expressed about perceptions around the impartiality of the board. 

Planning appeals up to that point were decided on by the minister for local government. This was entirely unsatisfactory and heavily mired in politics. 

The chances of a successful appeal had as much to do with the appellant's "party colours" as the merit of any particular application. 

So it had been since the cornerstone planning act of 1963 but such a system was simply no longer tenable. 

An Bord Pleanála chair Dave Walsh resigned last week, leaving the board with four operational members — a fifth is on extended leave.

Therefore, a very high premium was being put on the impartiality and independence of the new body in order to win public confidence.

The legislative solution arrived at was to mandate that the chair be a serving or retired High Court judge. Such a figure, it was felt, would not have his or her will bent to suit the government of the day. 

The first chair was Judge Denis Pringle. 

He was succeeded by a colleague, Eamon Walsh, but in 1983 a new system for the appointment of a chair, which no longer required a judicial figure, was enacted. 

To the greatest extent, that system has persisted until today.

For a long time, a judicial figure wasn’t missed. The board functioned as designed under a succession of chairs who had never donned wig or gown. 

The board’s independence and impartiality were not called into question. 

This was reflected in the Organisational Review of ABP conducted in 2016. 

On the subject of the appointment of a chair, the review group did not think it was necessary to go back to the future.

“Notwithstanding the increased legal complexity of the work of An Bord Pleanála, the review group does not consider it a requirement for the chairperson to possess a legal qualification,” it reported. 

“The review group also considers that An Bord Pleanála’s high reputation for integrity is such that there is no need or desirability in returning to a requirement that the chairperson be a high court judge or similar.” 

That was then, a short six years ago. This is now. The enhanced reputation referenced in the review is no more. 

The board’s impartiality and independence have been casualties of the drip feed of allegations about conflicts of interest, interference in inspectors’ reports, and the composition of deciding boards. Public confidence has been drained. 

What is now required is a leader who is already working in an environment where impartiality and independence are embedded in the culture. 

Appointing a High Court judge would give the new board a head start, restore a sense of authority and acknowledge that a step back may be required in order to move on from the current crisis that has enveloped An Bord Pleanála.

It may not be easy to find such a figure. 

Were, for instance, the president of the High Court charged with locating a candidate, the chances are there wouldn’t be too many throwing their hand in the air. 

But surely there must be a few among them who recognise that while this would not be a glamour gig and may involve a share of elbow grease, there are times when the national interest calls. 

In light of a housing crisis that is dominating public and political life, and widening generational gaps, this surely is the opportunity for some High Court judge to make a real difference. 

All it requires is a little innovation and urgency from the minister for housing to make it possible.